Negotiable Instruments Act, Chapter XVII Defeats the Purpose

(By Advocate S.A. Karim, Thiruvananthapuram)

The Negotiable Instruments Act, 1881, is century old one. By Amendment Act, 66 of 1988, Chapter 17 has been introduced in the main Act. This Chapter is only ten years old. It contains Ss.138 to 142. The amendment intends to discourage the unscrupulous dealings in cheque and to get back the cheque amount to the payee or the holder in due course. Before the amendment, the Act was under civil jurisdiction. After the amendment, it came to criminal jurisdiction. If one does not follow the section of this Chapter, remedy lies in the civil side. This chapter underwent various interpretations by various High Courts and the Supreme Court. Thus, this Chapter became the life blood of commerce and the Act itself. Still the real purpose is not served.

The drawer, drawee and the payee or holder in due course are the parties of a cheque. Normally, the victim is the payee or the holder in due course. This chapter intends to get back the cheque amount to the payee or the holder in due course. It never happens. S.138 reads-

"Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it, exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both".

Under this section, once an accused is found guilty, he shall be convicted and sentenced to undergo imprisonment for a term or impose fine. The payee or the holder in due course does not get the cheque amount. The case is instituted on a complaint by the payee or the holder in due course under S.142 of the same chapter. The Section further speaks the formalities to be followed. If he knows, he will not get the cheque amount, he will not file complaint and instead fall back to the civil side. The victim comes to the criminal court for speedy remedy and to get the amount and save money and time. The enlightened Parliament has never intended to make the treasury richer with private money. It is the undesired effect of this chapter. As this chapter comes under criminal jurisdiction, the Criminal Procedure Code applies. It is true S.357 of the Code provides compensation. It is only discretionary. In order to serve the intention of the Parliament, it requires a provision to get the cheque amount and expense to the payee or the holder in due course.

Rajendra Prasad (1997 (2) KLT 458) - A Bad Stock of Descent

(By K.V. Sohan, Advocate, Ernakulam)

The Division Bench decision Rajendra Prasad v. South Indian Bank (1997 (2) KLT 458) held following the decision in Sheo Narain Sah v. Mt. Deolochan Kuer (AIR 1948 Pat 208) that the right of redemption until confirmation of the sale is not a right under S.60 of the Transfer of Property Act but only a right under O.34 R.5 of the Central CPC. It further held that the under the amended Kerala O.34 only a composite decree is contemplated and once a sale takes place pursuant to the said decree the right to seek redemption ceases. The attention of the readers are also drawn to the Article written by Mr. M. R. Parameswaran in 1997 (2) KLT (Journal) 46. Mr. Parameswaran pleaded for amendment of the Kerala Order 34 to avoid unnecessary hardship to mortgagors. (I feel there are stronger arguments to show that O.34 of Kerala is beyond the rule making power of the High Court, whether it is under S.122 of CPC or under S.104 of the T.P. Act and so bad. For the time being I am not examining that proposition). With great respect the approach made in 1997 (2) KLT 458 as well as in the Article written by Mr. Parameswaran is not in the right direction.

2. I submit that the Division Bench decision is PER INCURIAM of binding precedent as well as SUB SILENTIO of relevant provisions of the Kerala Civil Procedure Code. To substantiate the finding that on passing of final decree the right of mortgagor comes to an end, the Division Bench followed AIR 1948 Pat. 208. This decision was directly over-ruled in Mhadagonda Ramgonda Patil & Ors. v. Shripal Balwant Rainade and Ors. (AIR 1988 SC 1200) the said fact was not noticed by the Division Bench. So, the entire finding based on AIR 1948 Pat 208 is PER INCURIAM.

3. The Division Bench held that there is only a composite decree under the Kerala Amendment to O.34 CPC and "the right to deposit and avert the sale is conferred on mortgagor - Judgment debtor under the Kerala Code only prior to the sale itself and not subsequent to the sale". It is submitted that this finding is unsupported by any provision of law. It is also submitted that the Division Bench committed grave error in holding that the right of redemption until confirmation of the sale is not a right under S. 60 of the Transfer of Property Act and is only a right conferred by Order 34 R.5 of the Central CPC.

4. It cannot be disputed that the right of a mortgagor to seek redemption in India is a statutory right conferred under S.60 of the Transfer of Property Act and the said right can be extinguished only in the manner provided under S.60 of the Transfer of Property Act. S.60 says that the sale right can be extinguished by act of parties or by decree of a Court. The Privy Council in Raghunath Singh & Ors. v. Mt. Hansraj Kunwar & Ors. (AIR 1934 P.C.205) held that the decree extinguishing the right of redemption of a mortgage should be strictly according to the form and the decree must specifically state that the right of the redemption shall be extinguished (Privy Council case was a suit for redemption in which the earlier final decree deviating from the form which debars redemption decreed that, in case of default in making payment the plaintiffs suit will stand dismissed. In such circumstances Privy Council held that the second suit for redemption is maintainable as the right of redemption has not been extinguished by the earlier decree as provided under S.60 of the T.P. Act).

5. A close study of O.34 of Central CPC and the Kerala Amendment will reveal that a decree passed in a suit for redemption and foreclosure are different from a decree for realisation of the mortgage amount by sale of the mortgage property. Under the Kerala Amendment a decree for foreclosure is passed under O.34 R.2 and a decree for redemption is passed under O.34 R.4, whereas a decree for sale is passed under O.34 R.3. It is true that the amended Kerala CPC does not contemplate passing of a preliminary decree and final decree in any of the suits under Rr.2, 3 and 4 of O.34. One will notice that in a foreclosure suit, O.34 R.2(ii) says that if payment is not made on or before the day fixed "the defendant and persons claiming through him shall be debarred from all rights to redeem the property". In the decree for redemption, under O.34 R.4 (iii) also the plaintiff is debarred from all rights to redeem the property. It is to be noticed that in a decree for sale under O.34 R.3 there is no debarring of the right of redemption for nonpayment of the decree debt within time and the decree under O.34 R.3 is without debarring the defendant mortgagor from his right to redeem i.e.; in a decree under O.34 R.2 the defendant/mortgagor is debarred by virtue of R.2(ii) from redeeming the property on expiry of the time fixed or failure to pay within the extended time. So also in a decree for redemption the plaintiff mortgagor is debarred by virtue of O.34 R.4 (ii) from redeeming on the failure of the payment within the stipulated time or extended time under O.34 R.5 of Kerala Amendment. This provision which debars redemption is specifically absent in O.34 R.3 and the decree form thereto in Appendix D No.6. The Division Bench is SUB SILENTIO regarding this distinction.

6. So, even if a composite decree under Kerala O.34 R.3 is passed there is no debarring the mortgagor of his right to redeem and the decree passed under O.34 R.3 cannot be said to be a decree which extinguishes the right of redemption. Thus logically and legally (he right of redemption is available to a mortgagor or any other person entitled to redeem in a decree passed under O.34 R.3 until the sale becomes absolute by an order of confirmation of the sale as the sale itself does not extinguish the residuary right of the mortgagor in the ownership of the property (Ref. O.21 R.89, 90 & 92). So, the right of redemption under a decree as per O.34 R.3 can be extinguished only on an order of confirmation of the sale whether under the Central CPC or under the amended Kerala CPC. O.34 R.5 of the Central Act is only a recognition of the substantive right in the procedural law. It is submitted that the Division Bench ruling in Rajendraprasad v. South Indian Bank is a bad stock of descent.

Gender in Equality in Partition

(By Jacob P. Alex. VIII Semester Student, School of Indian Legal Thought, M.G. University, Kottayam)

Introduction

"All are equals but some are more equal than others", wrote Orwell decades back in Animal Farm. We are about to cross the 20th century and seeking the gate pass to enter into the 21st century. Political parties make occasional vibrations for codification of personal laws but, some community is against it and a major section favours it. Those who argue for codification of personal laws are silent about the gender discrimination created by S.23 of the Hindu Succession Act, 1956. Mrs. Mary Roy was successful in getting her right to partition of intestate property - notwithstanding the then existing Travancore Christian Succession Act and Cochin Christian Succession Act. The Apex Court of the land held that provisions of the Indian Succession Act will apply to Christians in Kerala. The personal law is to be untouched by the provisions of the Part III of the Constitution [1]. The Supreme Court has not given any reasons for this proposition and the declaration of the Supreme Court reasoned or unreasoned is always binding.

If Christian Law relating to succession in middle Travancore and erstwhile Cochin can be changed I wish to bring to the notice of the legal luminaries in the Bench and Bar, the Law Commission and the Parliament, the glaring discrimination created by S.23 of the Hindu Succession Act, 1956 which runs as follows:

Where a Hindu intestate has left surviving him or her both male and female heirs specified in Class I of the Schedule and his or her property includes a dwelling house wholly occupied by members of his or her family then notwithstanding anything contained in this Act, the right of any such female heir to claim partition of the dwelling house shall not arise until the male heirs choose to divide their respective shares therein, but the female heir shall be entitled to a right of residence therein.

Provided that where such female heir is daughter, she shall be entitled to a right of residence in the dwelling house only if she is unmarried or has been deserted by or has separated from her husband or is a widow.

Object and Reasons - Whether a justification?

It is seemingly with the object of preventing fragmentation or disintegration of family dwelling house that the aforesaid provision is enacted. It is unnecessary to quote the plethora of decisions for brevity. In the under noted cases[2] it was very clearly mentioned that the sole object of S.23 is to prevent fragmentation of the dwelling house. Authoritative treatises on Hindu Law also repeat the very same object. But it should be noted that this enactment was passed in the year 1956 and the Parliament had in mind the provisions of Partition Act 1893. Yesteryear's India is not today's India. The Hindus particularly in Kerala and that too the so called "Janmies" (landlords) had extensive lands of immovable properties which were snatched away through the Land Reforms Act, a revolutionary change made by the State of Kerala. If this provision is retained the female heirs will find it very difficult to get their share unless the male heirs choose to divide their respective shares. In order to attract S.23 the following requirements should be satisfied (1) A male or female dies intestate. (2) The heirs include female heirs specified in Class I of the Schedule. (3) The deceased leaves a dwelling house wholly occupied by members of his or her family.

Dissection of Section 23 of the Hindu Succession Act, 1956 and Anatomy of Gender Discrimination

1. If the object is to prevent fragmentation of the dwelling house the male members should also be prevented from claiming partition. Whether the fragmentation could happen only in the hands of female heirs? If S.23 is intended to prevent partition of the dwelling house then logically it should have been prevented both at the hands of male and female heirs. Unfortunately the wordings of S.23 being only designed against female heirs it ipso facto results in discrimination.

The expression "until the male heirs choose to divide their respective shares" will result in a quite unhappy situation and the female heirs will be constrained to wait until all male heirs divide the property before enforcing her right to partition. The Smritikars[3] were of the view that the dwelling house should not be partitioned [4]. Though this was the clear and sole intention, gradually the unfortunate expression "'at the instance of female heirs" has been included which will be a violation of the equality principle. Even after the death of the father a female daughter cannot get her share of property on account of the stumbling block created by S.23. So the Section is manifestly discriminatory and still worse than the provisions of the erstwhile Travancore and Cochin Christian Succession Acts.

2. Recently the Hon'ble Supreme Court in Narasimha Murihy v. Susheela Bai[5] gives a "thought provoking" logic behind S.23 and held that S.23 restricts the right of a female heir to claim partition of the family dwelling house so long as the male heirs do not choose to effect partition of the same, it was also held that due to marriage the daughter would leave the parental house and get transplanted into the matrimonial home. It is inferred that daughters will loose their affection towards their parental home after marriage.

Are daughters less anxious and less reverential to preserve the dwelling house to keep the parental memory alive than the male heirs? The object of preventing fragmentation can be thwarted or defeated by a male member and they can fragment the dwelling house which the female heir cannot. And I fear the paragraph Nos.14 to 18 of the above said decision in Murthy's case[6] would be criticized as an example of male chauvinism.

The object of preventing disintegration of a dwelling house at the instance of a female heir who may become an outsider by marriage cannot be fully achieved. The son of predeceased daughter who is a class 1 heir and who is an outsider of the family can claim partition under law. This section prevents only the daughter(s) or female heir(s) of the predeceased from claiming partition. If that is so how can the object of preventing fragmentation be achieved?

The statutory interdict which prevent females from claiming partition until the male heirs choose to divide their respective shares is unfortunate. And in this situation, the law is leaning heavily in favour of males. If there is only one male heir, he can successfully obstruct the right of female heir(s) for ever by resorting to S.23 of the Act. In such situations the right to partition of a female will be permanently postponed and will be ultimately frustrated.

Hence, it is submitted that the object of S.23 cannot be fully achieved and the same will only result in denying the rights of female heirs. This section will only help to throttle the dream of equality.

3. The proviso of S.23 is a still more obnoxious provision which only offers stark contradictions and disparities. There are eight class 1 female heirs i.e., (i) daughter (ii) widow (iii) mother (iv) daughter of a predeceased son (v) daughter of a predeceased daughter (vi) widow of a predeceased son (vii) daughter of a predeceased son of a predeceased son (viii) widow of a predeceased son of a predeceased son.

But I am afraid whether the drafts-man was in deep slumber as there are many disparities. The object itself cannot be achieved in all situations and daughters are blatantly discriminated. So, I am forced to submit that the above retrograde provision which is outmoded must be given a decent burial.

1. Lastly I request the Parliamentarians to repeal S.23 of the Hindu Succession Act, 1956.

2. I request the Feminist Organisations and allied associations supporting them to take up this matter before the Hon'ble Supreme Court.

3. I appeal to the Law Commission to recommend repeal of the obsolete provision.

_________________________________________________________________

Footnotes:

1. Krishna Singh v. Mathura Ahir (AIR 1980 SC 707)

2. a Janabai Amma v. Palani Mudaliar(T.A.S.1981 Mad.62)

  b V. Mallikarujuna Rao v. C. Sivasankara Prasad (AIR 1981 AP 84)

  c Mookkammal v. Chithravadiammal (AIR 1980 Mad.243)

  d Arun Kumar Senyal v. JnanendraNath SenyaI (AIR 1975 Cal.232)

  f Sanjaya Kumar Das v. Smt. Maya Dutta (AIR 982 Cal. 222)

  g Smt. Usha Majumdar v. Smt. Smrithi Basu (AlR l988 Cal.115)

3. Manu IX 219,MitaksharaI,IV, 16-17)

4. Mitakshara I,iv,21.

5. Narasimha Murthy v. Susheela Bai (AIR 1986 SC1826)

6. Ibid

A Reply to "Abolish C.A.T. - Sooner the Better"

1998 (1) KLT 88 Journal

(By Advocate Govindh K. Bharathan)

The Article published in 1998 (1) KLT 88 - (Journal) purportedly written by Sri. K. Srinivasan Nair who claims to have been a former Judicial Officer and Additional Director of Public Prosecutions calling for abolishing the Central Administrative Tribunal is offensive in tone, erroneous in fact and law and is in contempt of the Honourable Central Administrative Tribunals of the land. It is obvious that the intention of the article is to offend and not to instruct. The sheer lack of investigation on the part of the author is reflected in the palpable errors of fact in the article. Erroneous facts and misconceived misapplications of the questions of law have been passed into service in support of the authors claim that Central Administrative Tribunals should be abolished as they are "while elephants" and have failed to fulfil the tasks for which they were created in the first instance.

By recommending the abolition of Tribunals and the transfer of all cases to the High Court, the author has apparently not understood the very concept of the development of Administrative Adjudication. The article recommends a great leap backward to the days when Administrative Tribunals were criticised by jurists like Dicey and Hewart. Those criticisms may have been valid at that stage of the development of law. But times have changed and the gargantuan growth of administrative law, which was a necessary concomitant of industrial progress, and the phenomenal growth of State control into all aspects of life changed the very basis of the rule of law. The immediate result was the growth of a vast bureaucratic set up. Matters relating to service conditions of employees of the State acquired proportions which the High Courts of the land found difficult to handle within the limits of the extra ordinary jurisdiction vested in them Art.226 of the Constitution. Again, the very texture of the contentions put forth by Government Servants regarding their service conditions, often defied the limitations inherent in the exercise of the extra ordinary jurisdiction vested in the High Court under Art.226 of the Constitution, even taking into account the ever widening vistas that liberal interpretation had opened out to Court's power to issue high prerogative writs.

It was under these circumstances that Administrative Tribunals were created. Administrative Tribunals have come to stay as evident from an over-view of the development of law all over the world. Such Tribunals exist in the United States, the United Kingdom and France and their working has added a new facet to the very concept of the dispensation of justice. Their performance revealed a fresh and approach to the problems arising from service conditions of Government servants. They proved to be untrammelled by the strait-jackets of conventional Judicial process where the emphasis was on procedure and precedent, delaying and thereby denying the justice intended to be dispensed.

Perhaps the Author has not heard of Art.323-A of the Constitution whereby Parliament has been empowered to create Tribunals to deal with complaints regarding recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or any State. The makers of our Constitution obviously anticipated the necessity for such Tribunals, foreseeing phenomenal arrears which could clog the speedy and effective flow of justice. The recommendation in the article to abolish the Central Administrative Tribunal displays a dismal lack of knowledge of the way courts function. The conclusion of the author show that he is unfamiliar with the working of the Central Administrative Tribunals. He also appears not to have assimilated the tone, content and import of the decision of the Supreme Court in Chandrakumar's case (AIR 1997 SC 1125).

In Chandrakumar's case, the 7 Judge Bench of the Supreme Court clearly laid down that the fact that some Tribunals were not functioning up to expectations could hardly be the basis for holding that their very creation was unnecessary and their foundation unsound. The Bench clearly laid down that the reasons for which the Tribunals were constituted still exist (para.89). There was also a clear finding that the views of the Malimath committee which recommended that alternative institutional mechanisms like Tribunals be abandoned and High Courts themselves be divided into separate divisions for different branches of law were not suitable to the present context. The 7 Judge Bench reiterated that the reasons for the constitution of the Tribunals not only continue to persist but have become even more pronounced in our times. While bringing Tribunals under the jurisdiction of High Courts under Arts.226 & 227 of the Constitution, the Supreme Court stressed that to hold that Tribunals have no power to handle matters involving Constitutional issues would not serve the purpose for which they were constituted. The Bench laid down that while raising the power of judicial review of legislative action vested in High Courts under Art.226/227, it would ensure that frivolous claims were filtered out through the process of adjudication in the Tribunal and the High Court would also have the benefit of a reasoned decision on merits which would be of use to it in finally deciding the matter. Thus, there is no legal, factual or reasonable basis to conclude, as has been done by the learned author of the article that "one more tyre" (sic) has been added to the system which will cause more delay.

The 5 Judge decision in Sampath Kumar's case (AIR 1987 SC 386) has been integrated and incorporated into the larger bench decision in Chandrakumar's case and the criticism regarding the working of Tribunals in Sampath Kumar's case has been blended into the final decision in Chandrakumar's case where the emphasis was on improving the quality of judicial review of Tribunals and not on their abolition. The subtleties of these two nodal rulings have evidently escaped the judicial appreciation of the learned author in the article. He has also failed to understand the constitutional mandate of .Art. 141 of the Constitution that the law laid down by the Supreme Court becomes the law of the land. To cite Chandrakumar's case in support of the learned author's recommendations to abolish Tribunals thus amounts to clear misinterpretation of this land mark ruling, which can be either a result of non-assimilation of the tone and content of the judgment or a deliberate attempt to misapply the ruling in an effort to substantiate a wrong proposition of law.

The attack in the article seems to be not so much against the Central Administrative Tribunals and their functioning as against the Chairman and members of the Tribunals and the perks and pay scales they enjoy. It seems that the Author is unaware of S. 6 of the Administrative Tribunal's Act, 1985. The position of Vice Chairman of the Central Administrative Tribunals has been equated by the Author to the District Judges. S.6 of the Act lays down the qualifications for appointment of Chairman, Vice Chairman and Judicial Member of the Central Administrative Tribunal.

The relevant portion of S. 6 of the Act is reproduced below:

6. Qualifications for appointment as Chairman, Vice-Chairman or other Members:-

(1)   A person shall not be qualified for appointment as the Chairman unless he-

a)    is, or has been, a Judge of High Court; or

b)    has, for at least two years, held the office of Vice-Chairman: (xx)

c)     x           x             x             x

2)     A person shall not be qualified for appointment as the Vice-Chairman unless he-

a)    is, or has been, or is qualified to be, a Judge of High Court; or

b)    has, for at least two years, held the post of a Secretary to the Government of India or any other post under the Central or a State Government carrying a scale of pay which is not less than that of a Secretary to the Government of India; or

(bb) has, for at least five years, held the post of an Additional Secretary to me Government of India or any other post under the Central or a State Government carrying a scale of pay which is not less than that of a Additional Secretary to the Government of India; or

d)    has, for a period of not less than three years, held office as (a Judicial Member or an Administrative Member).

3)     A person shall not be qualified for appointment as a Judicial Member unless he-

a)    is, or has been, or is qualified to be, a Judge of a High Court; or

b)    has been a member of the Indian Legal Service and has held a post in Grade I of that Service for at least three years.

The Section is elaborate and exhaustive and would have merited at least a cursory reading by the author before he asserted that Vice Chairman of Central Administrative Tribunals are in the position of District Judges. And it is with this innocence of the Law that the Author presumes to recommend the abolition of Tribunals, which have been established under the mandate of Art.323 of the Constitution.

One cannot but discern the faint taste of sour grapes that pervades the article. But what is really distressing is the apparently disturbing attempt to quote wrong facts and to misinterpret the judgments of the Supreme Court and of our own High Court on this matter. For instance, it is patently wrong to state that 48,000 cases are pending adjudication before the Central Administrative Tribunals. This is obviously an incorrect and over-inflated figure and the statement that the figure has been taken from 'news paper reports' without mentioning the names of the news papers which are claimed to have so reported, shows a cavalier approach hardly becoming of a reasoned judicial opinion.

As a matter of fact, the actual position is totally different. The present pendency of cases before the Central Administrative Tribunal, Ernakulam Bench is in the vicinity of 1300 as on 1.8.1998 of which about 65% of the cases are one year old, 30% of the cases are 2 years old and barely 5 % of the cases are over two years old. Even assuming but not conceding that the improbable figure of 48,000 is anywhere near the correct figure, the pendency per Tribunal throughout the country would be about 2,800 cases since there are 17 Benches of the Tribunals in the various States. The pendency of cases before the High Courts on the other hand is about one lakh per High Court (on an average). Statistics is a dangerous weapon in the hands of the unscrupulous especially when cited with seeming confidence.

Before departing from the subject, one cannot shake off the impression that the concluding portions of the article constitute an oblique attack against the Chairman and Members of the Central Administrative Tribunal. These remarks are in effect half-truths and innuendo and should not have found a place in any article dealing with an important constitutional subject like the necessity for Administrative Adjudication through Tribunals.

I would conclude by saying that much more investigation and introspection should have gone into such an article before it was presented for publication. Whatever be the intention of the learned author, the effect of such an article on the litigating public is too serious to remain unrebutted.

Death - the Enigmatic Phenomenon in the Medical Science

(By V.K. Babu Prakash, Judl. First Class Magistrate, Karunagappally)

The point of time of death of a human being is important in the field of Medical Science. This is more important in the branch of Medical Jurisprudence and Toxicology because the point of time of death is vital in the case of a homicidal or suicidal death. The medical science is very much developing in the area of Pathology, Serology, Sistology regarding transplantations of human organs and tissues. The transplantation of kidneys from a body which still has a beating heart, is much more likely to be successful, the point at which death can be said to have occurred becomes a matter of critical importance. Even where kidneys are removed after cessation of the circulation, the shorter the interval, the better the chances of success. It thus becomes of prime importance to agree upon criteria for death. Where heart, lungs, liver etc. are to be transplanted, it is essential that beating heart donation is performed. Tissue donations are taken from patients with irreversible cerebral damage, who cannot recover brain stem functions. Everybody knows of the fact that cessation of spontaneous respiration is an absolute pre requisite without which no donation would ever be made from a person with spontaneously functioning heart and lungs, even if it could be shown that his cortical activity was irreversibly absent. Where spontaneous respiration has ceased and oxygenation is maintained only by mechanical means, the point at which death is declared can be a very variable point in time.

Philosophical and religious interpretation of the process of death is not the way out in Medical Science. Of course, the subject of death was a brain scratching enigma for many thinkers, philosophers, writers and scientists of the past centuries and present. In the branch of Biology, Medical Science, Microbiology, Genetic Engineering much research had been done about the cause of death and its point of time in the human faculty which exactly puts out the lamp of life. Death means the complete stoppage of the functional system of a living being in simple scientific terms. Equally also, there is no legal definition of death in India, the determination of death being left to the decision of individual doctors. A few countries have a statutory definition of death, mainly because of the problems associated with transplantation of organs and tissues. But India like United Kingdom leaves the diagnosis of death to the individual doctor. This in many way is more satisfactory as it allows some flexibility and does not give rise to problems of interpretation when strict legislation is applied to such a difficult matter.

Though in many advanced countries, a doctor always has to determine the fact of death and to certify its cause or refer it for medico legal examination, this is not a practicable proposition in much of the parts of India, where most deaths occur outside the immediate availability of a doctor's attendance. However, in cases where a doctor is regularly in attendance upon a patient, such as in hospitals and in urban areas, he should always make an effort to see the body after death and to satisfy himself that death has occurred, whenever possible coming to some decision as to the cause of death. Naturally, when any suspicion exists, the matter can be reported to the Medico Legal Authorities.

As such, death is not a fixed, simple phenomenon. Indeed, a definition of death is very difficult to attain. The question was largely academic in the past. Yet when the time passed on the question of death needs an answer in the definite manner. Death can be analysed in the following manner:-

(1) The person in question may be considered dead in some respects if although his cardio-respiratory system is still functioning, he is unconscious and is irreversibly beyond any return to consciousness.

(2) The main cardio-respiratory functions of his body have ceased.

(3) The actual peripheral tissue cells of his body have become non functional.

The above analysis can be summarised into two categories. That is to say:

(a) The person in question has a somatic death in which the person is dead in that he is irreversibly beyond ever again being an integrated, functioning human being;

(b) He has a cellular death, in which the basic cellular units of his body have ceased to function.

Still again, a person has permanently lost consciousness and is not responsive to any stimute, he may be said to be in a state of brain stem death. If in this state, his respiratory centers are functioning spontaneously, he is in a vegetative state. If they are not, he is brain-stem dead. In the latter context major transplantation techniques are contemplated, as although he is irreversibly beyond communication with his fellowmen, his organs are still being perfused with oxiginated blood because of the artificial support of his cardio-respiratory systems. In otherwords, he may be thought of as a heart-lung preparation being. It is at this point of situation the matter of moral, philosophical and religious argument appears as to whether he is dead or alive. Various religious and philosophical thoughts formulate the argument that the person is not dead at all. However, in advanced medical science, it is being increasingly accepted that such person is dead for the following facts:-

(a) Expensive supportive equipment and medical nursing case should not be wasted upon him, especially if it is being diverted from the treatment of potentially curable patients.

(b) Such brain stem dead persons are potential donors for the benefit of other sufferers.

The key to open up the field of enigma is the argument of irreversible. Unfortunately it is not easy to determine whether such brain stem death is irreversible or not and various schemes of examination have been devised to determine whether it is safe to assume that consciousness may ever be regained. So death means different things to different people. When all sentient cerebral activity ceases, never to return, then the person is socially dead, in that he can never again communicate with his fellowmen, is unaware of their existence or indeed of his own existence. It is only when the degree of brain death is sufficiently wide spread that basic functions like control of respiration, brain stem reflexes, and carnial nerve functions are lost, that death in its ultimate degree in inevitable and organ donation becomes a possibility. Loss of the power of spontaneous breathing used to be an imminent potent of total death, out with the technical advances in mechanical respiration, this is no longer so, the heart function becoming the next most vital criterion. Even this is now within the ambit of artificial support, but in cases where irreversible brain-stem death has occurred, it becomes unethical to continue mechanical respiration, let alone circulation. Following respiratory and circulatory death, then cellular death follows in a matter of minutes for most tissues though some relatively vascular tissues may remain viable for a considerable time.

So the conclusion does not resolve the enigma of death. The concept of death is still a different process to different people. To the kith and kin it is the loss of a favorite and precious being, to the medical scientist it is the stoppage of the functional system, to the philosopher and thinker it is the renouncement of the soul from the temporary shelter of a body, to the legal practitioner it is the undefined word in the statute of a code.